Hearsay -- Perhaps the traditional exceptions trump Wigmore?

The Superior Court decision in R. v. Petro-Canada, 2008 CanLII 29108 (ON S.C.) is curious and appears to contradict Supreme Court of Canada reasoning.

At issue was the admission of a letter. The trial judge noted the letter was being admitted to prove its truth and was hearsay. Everyone accepted that.

But the trial judge refused to admit the letter because, after a careful analysis, the two grounds to admit hearsay, necessity and reliability, were not met.

On appeal the letter was found admissible because it fit within a traditional exception to the hearsay rule. The Court held the traditional exceptions trumped the necessity/reliability principle.
The Court held:

"[23] In effect, the trial court held that the Khan case law has had the effect of narrowing the scope of previously recognized common law or statutorily admissible categories of hearsay, more significantly the admissibility of vicarious admission by an employee of a corporation, which stand on a different footing than the sort of hearsay admitted under the principled exception rule. "


Oddly the Court did not mention Starr which is subsequent to Khan and makes it clear that the only test for admission of hearsay is necessity and reliability. Some might suggest the decision was wrong. Wrong or not it may be useful.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4